National Security & Defense

Since the war against militant Islamists began in earnest in 2001, a cornerstone of U.S. national security policy has been to employ military commissions to hear criminal charges filed against al Qaeda leaders responsible for the September 11 (and subsequent) attacks. A decision last week by the U.S. Court of Appeals for the D.C. Circuit, al Bahlul v. U.S., throws that policy into disarray. It struck down a 2006 congressional statute permitting a wide variety of criminal charges to be brought before military commissions. Incredibly, the court invoked international law to do so, ruling that the U.S. Constitution only permits military commissions to consider those criminal charges that are accepted throughout the world as constituting violations of the international law of war.

It is questionable whether U.S. courts should ever look to international law for guidance when interpreting the U.S. Constitution. It is unfathomable for a court to hold (as did the D.C. Circuit) that the U.S. Constitution is controlled by international law, and to do so in a manner that significantly impedes the government’s ability to conduct trials before military commissions. The Obama Administration should ask the Supreme Court to overturn this ill-conceived decision. Continue reading →

“The Roberts Court is pro-business.” The Roberts Court “comes to the defense of business.”

Stories peddling this angle seem to be a compulsory part of reporting at the conclusion of each Supreme Court term. The completion of the October 2012 term is no exception. King & Spalding’s Ashley Parrish took strong exception to this characterization of the Court during Washington Legal Foundation’s annual end-of-the-term briefing this past Tuesday. The entire program can be viewed here.

The “pro-business” bromide is a trite and woefully simplistic byproduct of the need to label things. One could argue that the term implies judicial bias, i.e. deciding cases based on the nature of the litigant rather than on the law. It can also be seen as ideological or political in nature. If, for instance, Justice Ginsberg happened to be the Chief Justice at a time when the Court’s rulings favored free enterprise, would we be seeing stories about how pro-business the “Ginsberg Court” is? Further, has anyone seen the justices who rule against business litigants described as “anti-business”?

As an institution which for 36 years has sought to advance legal principles which support the conduct of free enterprise, Washington Legal Foundation views “pro-business” Court as a compliment. We’re pleased that in the nine cases in which we filed during the October 2012 term, seven resulted in victories for “business” litigants. Our perspectives on the law, on the judiciary’s limited role, and on constitutional protections for business entities are prevailing. But WLF should not be alone in applauding this Court’s rulings against plaintiffs’ lawyers, activist groups, and federal regulators. Businesses employ Americans, Americans invest in businesses, and our free enterprise system gives people of all backgrounds a fighting chance to succeed.

So if a label must be imposed, did the Roberts Court earn its “pro-business” stripes this term? If one looks strictly at the numbers, generally it did.

The Supreme Court this week ruled that a group of American lawyers lack standing to challenge the 2008 law that expanded the U.S. government’s authority to engage in electronic surveillance of overseas aliens suspected of terrorism. To hear the reaction of the ACLU and other civil liberties groups to the decision in Clapper v. Amesty International, one would think that the Supreme Court is abandoning the rule of law and abdicating its responsibility to oversee the activities of the Executive Branch. Nonsense. The Court simply denied a right to sue by individuals who concede that they have no evidence that they have been subjected to surveillance. The decision is consistent with a long line of cases that have insisted on evidence of injury before a suit can go forward, particularly when the suit implicates national security concerns.

At issue are the 2008 amendments to the Foreign Sovereign Immunities Act (FISA). The amendments permit the federal government to engage in overseas surveillance of suspected terrorists under limited circumstances. But such surveillance is permitted under the FISA Amendments (FAA) only after the government has sought and obtained the consent of the FISA Court, a special court established to address national security issues.

On the day that the FAA was enacted, several lawyers and organizations (represented by the ACLU) filed a lawsuit seeking an injunction against surveillance conducted pursuant to the FAA. They alleged that the FAA violated their First and Fourth Amendments rights as well as separation-of-powers principles. Named as defendants were several senior Obama Administration officials, including Attorney General Eric Holder (whose authorization is required before any surveillance may be undertaken under the FAA). Although the law does not permit American citizens to be targeted for surveillance, the plaintiffs expressed a fear that the government would end up overhearing some of their conversations with those foreigners who are being targeted. Continue reading →

The Supreme Court heard oral arguments today in Clapper v. Amnesty International, a case that will decide whether a group of American lawyers have standing to challenge the 2008 law that expanded the authority of the U.S. government to engage in electronic surveillance of overseas aliens suspected of terrorism. Although the law does not permit American citizens to be targeted for surveillance, the plaintiffs fear that the government will end up overhearing some of their conversations with those foreigners who are being targeted. The nine justices appeared to be closely divided on whether such fears are sufficient to support the plaintiffs’ standing claims.

In asking the Court to uphold their standing, the plaintiffs assert that if they are not permitted to challenge the surveillance law, then no one will be able to do so. They may well be correct in that assertion, but that is immaterial. If no potential plaintiff can demonstrate that he has been injured by the law, the courts have no reason to examine claims that the law might infringe on someone else’s constitutional rights. Of course, nothing prevents the plaintiffs from raising their concerns with appropriate officials in the Executive Branch and Congress, the branches of government with primary responsibility for national security matters.

The 2008 law is an outgrowth of the revelation by The New York Times in 2005 that the Bush Administration had adopted a Terrorist Surveillance Program (TSP), under which the overseas communications of suspected terrorists were being monitored. Some critics charged that the TSP violated the requirements of the Foreign Intelligence Surveillance Act (FISA), a 1978 congressional statute that sought to regulate the use of electronic surveillance for national security purposes. In response, Congress amended FISA in 2008 to establish a supplemental procedure whereby the Government could obtain judicial approval to engage in the sorts of overseas electronic surveillance undertaken pursuant to the TSP.

On the day that the amendments were enacted, several lawyers and several organizations (represented by the ACLU) filed a lawsuit seeking an injunction against the conduct of surveillance pursuant to the new law, the FISA Amendments Act (FAA). They alleged that the FAA violated their First and Fourth Amendments rights as well as separation-of-powers principles. Named as defendants are several senior Obama Administration officials, including Attorney General Eric Holder (whose authorization is required before any surveillance may be undertaken under the FAA). The federal appeals court in New York held that the plaintiffs had standing to challenge the FAA; in June, the U.S. Supreme Court agreed to review that decision. Continue reading →

Amanda McKinzie, a 2012 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.

From the day Congress amended the Foreign Intelligence Surveillance Act of 1978 (FISA) to allow the communications of non-United States persons to be intercepted upon approval by the United States Foreign Intelligence Surveillance Court (FISC), parties have challenged the legislation’s constitutionality. Once such case, Clapper v. Amnesty International USA, recently reached the U.S. Supreme Court. The Court granted the federal government’s petition for certiorari on Monday, May 21, and will decide during the October 2012 term whether those challenging the law have Article III standing to sue.

The amendments to FISA do not permit the government to intercept communications of United States citizens to be intercepted. Despite this prohibition, the Clapper plaintiffs – U.S. attorneys, journalists, and labor, legal, media, and human rights organizations – claim they are fearful of being monitored. They assert that because they frequently communicate with potential international targets, there is a high probability that information they exchange will be intercepted. The plaintiffs further claim that based on this “well-founded fear,” they have expended much time, effort, and money in maintaining the confidentiality of their communications from potential interception. Accordingly, they argue that the future injury of interception coupled with their present expenditures provide standing to sue. Continue reading →